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ABSTRACT
In this article, we discuss Greek and Roman conceptions of liberty. The supposedly ‘neo-Roman’ view of liberty as non-domination is really derived from negative Greek models, we argue, while Roman authors devised an alternative understanding of liberty that rested on the equality of legal rights. In this ‘paleo-Roman’ model, as long as the law was the same for all, you were free; whether or not you participated in making the law was not a constitutive feature of liberty. In essence, this Roman theory was a theory of freedom as the rule of law and the guarantee of equal rights, especially due process rights. For this Roman concept of ‘legal liberty,’ as we call it, political participation was neither necessary nor sufficient. Theorized by Cicero and historicized by Livy, the Roman understanding of freedom flourished in early-modern times, proving important to paradigmatic republican authors such as Machiavelli and Rousseau as well as to Hobbes, whose work we discuss as a helpful point of comparison.
Acknowledgement
We would like to thank audiences at the University of Zurich and Cambridge University for criticism and suggestions, especially Carol Atack, Chris Brooke, John Dunn, Jeff Dymond, Peter Garnsey, Signy Gutnick Allen, Andreas Gyr, Nikolas Hächler, Adam Lebovitz, Amira Moeding, Enrico Piergiacomi, Malcolm Schofield, Max Skjönsberg, Michael Sonenscher, Sylvana Tomaselli and Adam Woodhouse. Many thanks to Lars Vinx for his insightful comments and to two anonymous reviewers.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Benjamin Constant, “The Liberty of Ancients Compared with that of Moderns” (1819), in Political Writings, ed. and trans. Biancamaria Fontana (Cambridge: Cambridge University Press, 1988), 309–28; for Hobbes's comment on Lucca, see Leviathan, ed. Noel Malcolm, vol. 4 of The Clarendon Edition of the Works of Thomas Hobbes (Oxford: Oxford University Press, 2012), 2.21; p. 332.
2 Berlin, “Two Concepts of Liberty” (1958), in Liberty: Incorporating Four Essays on Liberty, ed. H. Hardy (Oxford: Oxford University Press, 2002); for the quote, see Montesquieu, The Spirit of the Laws, ed. Anne M. Cohler, Basia C. Miller, and Harold Stone (Cambridge: Cambridge University Press, 1989), 11.2 (p. 155).
3 See e.g. Chaim Wirszubski, Libertas as a Political Idea at Rome during the Late Republic and Early Principate (Cambridge: Cambridge University Press, 1950); Kurt Raaflaub, The Discovery of Freedom in Ancient Greece, trans. Renate Franciscono (Chicago: University of Chicago Press, 2004); Naomi Campa, “Positive Freedom and the Citizen in Athens,” POLIS 35 (2018): 1–32; Valentina Arena, Libertas and the Practice of Politics in the Late Roman Republic (Cambridge: Cambridge University Press, 2013); Jed Atkins, Roman Political Thought (Cambridge: Cambridge University Press, 2018). See also Michelle T. Clarke, “Doing Violence to the Roman Idea of Liberty? Freedom as Bodily Integrity in Roman Political Thought,” History of Political Thought 35, no. 2 (2014): 211–33, an account of libertas as bodily integrity and freedom from coercion that is compatible with ours.
4 Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998); Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997); on its extension into Roman political thought, see Arena, Libertas, and Atkins, Roman Political Thought; for Rousseau, see Annelien de Dijn, “Rousseau and Republicanism,” Political Theory 46, no. 1 (2018): 59–80.
5 On the reception of Aristotle's Politics (as we will see, a critical source for this democratic theory of freedom as non-domination), see notably Sophie Smith, “The Language of ‘Political Science’ in Early Modern Europe,” Journal of the History of Ideas 80, no. 2 (2019): 203–26.
6 Montesquieu, Spirit of Laws, 11.3 (p. 155).
7 We do not discuss Sallust here because virtue is far more central to his analysis of liberty than it is for Cicero or Livy. While for Sallust, law and equal rights are necessary conditions for liberty as well, they are never sufficient; virtue, especially military virtue, is necessary as well and cannot be guaranteed by law. See William Walker, “Sallust and Skinner on Civil Liberty,” European Journal of Political Theory 5, no. 3 (2006): 237–59; Benjamin Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (Oxford: Oxford University Press, 2016), 261f.
8 Dom. 33.
9 Dom. 77–80 for the limits imposed by legal liberty on the power (potestas) of the Roman people, which is said (80) to be most extensive (maxima) in all other regards.
10 See Straumann, “Justice and Republicanism,” in F. Lovett, M. Sellers (eds.), The Oxford Handbook of Republicanism (Oxford: Oxford University Press, forthcoming); and below.
11 For an insightful discussion of the instability of neo-Roman or republican liberty, and its tendency to collapse either into liberal negative liberty or participatory positive liberty, see D. Dyzenhaus, “Critical Notice of On the People's Terms: A Republican Theory and Model of Democracy, by Philip Pettit,” Canadian Journal of Philosophy 43, no. 4 (2013): 494–513.
12 Skinner, Liberty Before Liberalism, 41; Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997), 31–2. See also Hannah Dawson and Annelien de Dijn, “Introduction,” in Rethinking Liberty Before Liberalism, ed. Dawson and de Dijn (Cambridge: Cambridge University Press, 2022).
13 Politics, 6.1317b13, trans. modified.
14 Politics, 5.1310a29-34 (Rackham trans.); see Campa, “Positive Freedom.”
15 Athenian Constitution, 2.2–6.1. More generally, see Josiah Ober, Mass and Elite in Democratic Athens: Rhetoric, Ideology, and the Power of the People (Princeton: Princeton University Press, 1989), 61–6; P. Brook Manville, The Origins of Citizenship in Ancient Athens (Princeton: Princeton University Press, 1990), 5; Mogens Hansen, “Democratic Freedom and the Concept of Freedom in Plato and Aristotle,” Greek, Roman and Byzantine Studies 50, no.1 (2010): 1–27; Campa, “Positive Freedom”; Annelien de Dijn, Freedom: An Unruly History (Cambridge: Harvard University Press, 2020), chp. 1; René de Nicolay, “The Birth of Unlawful Freedom in Plato's Laws 3,” Polis 38 (2021): 494–511.
16 Politics, 3.1279a21-22.
17 Politics, 5.1310a28-34.
18 Herodotus, Histories, 3.31.4 (for Cambyses) and 3.80.3 (Otanes, who equates the “monarch” with a tyrant at 3.80.4).
19 Sophocles, Antigone, l. 506–7.
20 Politics, 5.1310a35.
21 Politics, 5.1301a20.
22 Politics, 4.1292a20, 27, 34. See Kinch Hoekstra, “Athenian Democracy and Popular Tyranny,” in Popular Sovereignty, and Ivan Jordovic, “Aristotle on Extreme Tyranny and Extreme Democracy,” Historia 60, no. 1 (2011): 36–64. See also Federica Carugati, Creating a Constitution: Law, Democracy, and Growth in Ancient Athens (Princeton: Princeton University Press, 2019).
23 Xenophon, Hellenica, 1.7.12; see also Memorabilia, 1.1.18. See Dustin Gish, “Defending Demokratia: Athenian Justice and the Trial of the Arginusae Generals in Xenophon's Hellenica,” in Xenophon: Ethical Principles and Historical Enquiry, ed. Fiona Hobden and Christopher Tuplin (Leiden: Brill, 2012), 161–212.
24 Hellenica, 1.7.15 (Socrates); 25–26 (Euryptolemus); see also Plato, Apology, 32b, where Socrates declares (apropos this precise episode) that he could never do anything parà toùs nómous.
25 Plato, Crito, 51c, 53c.
26 Plato, Phaedo, 115a.
27 See Brian Tierney, “'The Prince Is Not Bound By the Laws’: Accursius and the Origins of the Modern State,” Comparative Studies in Society and History 5 (1963): 378–400.
28 Politics, 2.1269a21-24.
29 Thucydides, Peloponnesian War, 2.37.1-2. See Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (Princeton: Princeton University Press, 2008); more generally, W. R. Connor, Thucydides (Princeton: Princeton University Press, 1984).
30 Peloponnesian War, 2.65.10.
31 Peloponnesian War, 6.15.3; see also Plutarch, “Life of Alcibiades,” 16.2-3, 17.2
32 Peloponnesian War, 6.89.5.
33 Isocrates, Panathenaicus, 131; Pseudo-Xenophon / “Old Oligarch,” Athenian Constitution, 1.5, 10.
34 Republic, 8.557b, 8.561d.
35 Republic, 3.404e.
36 On akolasía as a disease of the soul, see also Republic, 10.609b-c. See also Fred D. Miller, Jr., “Platonic Freedom,” The Oxford Handbook of Freedom, ed. David Schmidtz and Carmen E. Pavel (Oxford: Oxford University Press, 2016).
37 See e.g. Apology, 26e9; Gorgias, 508a; and Republic, 2.364a3, 3.403a10, 4.444b7, and passim.
38 Politics, 3.1277a.
39 Politics, 5.1301b.
40 Herodotus, Histories, 3.80.6. See also Gregory Vlastos, “Isonomia,” American Journal of Philology 74, no. 4 (1953): 337–66; Ober, Mass and Elite, 74–5; Gerald Stourzh, Modern Isonomy Democratic Participation and Human Rights Protection as a System of Equal Rights, trans. Cynthia Peck-Kubaczek (Chicago: University of Chicago Press, 2021).
41 Politics, 5.1301b.
42 Republic, 8.558c. Cicero would pick up on the same critique in De re publica: see below.
43 See Bernard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997).
44 Nicomachean Ethics, 5.1131b20.
45 Peloponnesian War, 2.37.1.
46 Nicomachean Ethics, 5.1132b30-1133a1 (“The very existence of the state depends on proportionate reciprocity; for men demand that they shall be able to requite evil with evil— if they cannot, they feel they are in the position of slaves … .”). Hobbes similarly insisted that “Justice be equally administered to all degrees of People,” where criminal law was concerned: see Leviathan, 2.30 (p. 534). We return to Hobbes below.
47 Republic, 3.404e-5c.
48 Polybius, Histories, 6.57.9.
49 Histories, 6.44.
50 Histories, 6.43.5. On Polybius's political theory, see Straumann, “Leaving the State of Nature: Polybius on Resentment and the Emergence of Morals and Political Order,” Polis 37 (2020): 9–43.
51 Cicero, De re publica, 3.23.7. On licentia in Cicero, see René de Nicolay, “Licentia: Cicero on the Suicide of Political Communities,” Classical Philology 116, no. 4 (2021): 537–62.
52 Cicero, De re publica, 1.44.17; see also 1.66. More generally, see Malcolm Schofield, Cicero (Oxford: Oxford University Press 2021), 40ff.
53 See e.g. Tacitus on how “really great and famous oratory is a foster-child of licence, which foolish men called liberty (licentiae, quam stulti libertatem vocitant),” and was in fact “an associate of sedition, a goad for the unbridled populace,” Dialogue on Oratory, 40.2-3; in Tacitus, Agricola, Germania, Dialogue on Oratory, trans. M. Hutton, W. Peterson, et al. (Cambridge: Harvard University Press/Loeb, 1914), 342–3.
54 De re publica, 2.43.
55 See for example the plebeians’ distrust of Cassius's first proposed agrarian law: “those lands would bring servitude [servitutem] to the men who should receive them, and were being made a road to monarchy,” Loeb trans., 2.41 (353). See also Schofield, Cicero, 29.
56 Arena, Libertas, 9.
57 Atkins, Roman Political Thought, 40–1.
58 De re publica, 2.54.
59 De re publica, 1.48. This is from the presentation of democracy, but elements of it are retained in the constitutional law-governed state Cicero holds up as the best and most stable: De re publica, 2.57. In De officiis, Cicero suggests that the first Roman kings were similarly chosen because “they managed by establishing equitable conditions to hold the higher and the lower classes in an equality of right” (aequitate constituenda summos cum infimis pari iure retinebat), 2.41 (Perseus trans).
60 De re publica, 1.49 (Loeb 75); Atkins, Roman Political Thought, 52–3. More generally, see Dan Edelstein and Benjamin Straumann, “Roman Rights Talk: Subjective Rights in Cicero and Livy,” History of Political Thought 43.4 (2022): 637–59.
61 See Elaine Fantham, “Aequabilitas in Cicero's Political Theory, and the Greek Tradition of Proportional Justice,” Classical Quarterly 23.2 (1973): 285–90. See also Henrik Mouritsen, Politics in the Roman Republic (Cambridge: Cambridge University Press, 2017), 14.
62 Cicero, De officiis, 1.64 (Loeb 66).
63 Cicero, De officiis, 1.88 (Loeb 88). [In liberis vero populis et in iuris aequabilitate exercenda]
64 De re publica, 1.43. This comes up again in 1.49: “For if we cannot agree to equalize men's wealth, and equality of innate ability is impossible, the legal rights at least of those who are citizens of the same commonwealth ought to be the same … ” See Fantham, “Aequabilitas,” 285.
65 De re publica, 1.53 (Loeb 81). [aequabilitas quidem iuris, quam amplexantur liberi populi].
66 History of Rome, 2.3.3, trans. rev. Canon Roberts, Perseus ed; discussed in Atkins, Roman Political Thought, 47; see also Skinner Liberty Before Liberalism, 44–5.
67 See Daniel Kapust,“Skinner, Pettit and Livy: The Conflict of the Orders and the Ambiguity of Republican Liberty,” History of Political Thought 25, no. 3 (2004): 377–401.
68 See Wirszubski, Libertas, 17.
69 History of Rome, 3.53.9; Atkins, Roman Political Thought, 49.
70 History of Rome, 3.56.9; Atkins, Roman Political Thought, 48.
71 History of Rome, 8.4.3-5; 8.5.4; and 8.14.3-11.
72 History of Rome, 38.50.8 (Loeb 171); qtd. Atkins, Roman Political Thought, 47.
73 See e.g. Machiavelli, Discorsi, esp. 1.40.
74 Atkins, Roman Political Thought, 51.
75 Skinner, Liberty before Liberalism, 85. See Hobbes, Leviathan, 2. 21 (p. 332). Interestingly, this converges with a view held by many Romans with regard to the early principate under Augustus, where Augustus’ prerogative “was wide, but constitutional and limited” and where “the essential rights and liberties of Roman citizens remained untouched,” allowing them to live “again under a system of law and order which safeguarded their rights,” in Wirszubski, Libertas, 122.
76 Clu. 146.
77 Hawley does not think that the neo-Roman distinction between republican and liberal liberty is stable, and accordingly does not think that liberal freedom is compatible with having a benevolent master: Hawley, Natural Law Republicanism, 178. We also harbour doubts regarding the stability of that distinction, but need not take a stance on this well-worn issue here.
78 Hawley, Natural Law Republicanism, 34; 34–38.
79 Off. 1.70.
80 Rep. 2.43, trans. Zetzel.
81 Rep. 2.43.
82 Rep. 1.43
83 Rep. 2.44.
84 Hawley, Natural Law Republicanism, 34, 37.
85 Hawley, Natural Law Republicanism, 37–40; and Off. 1.107–120; cf. 1.13. Note that this is not necessarily inconsistent with perfectionism, but it is inconsistent with paternalism. It may well be that we simply have to find out more about our individual natures in order to perfect them. Such an account has much in common with J. S. Mill's anti-paternalist, individualist perfectionism.
86 Rep. 1.47; and Att. 15.13.3.
87 Leg. 2.12, 1.48.
88 Clu. 146.
89 Leg. 3.44; cf. Dom. 43.
90 Leg. 3.44.
91 Caec. 95, trans. Yonge.
92 Caec. 96.
93 Leg. 2.11. Cf. Lon Fuller's 8 requirements for the rule of law, namely generality, promulgation, that laws be prospective, clarity, non-contradiction, that they be possible, constant, and that there be congruence between official action and declared rule, which implies due process. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969).
94 Leg. 3.2, 3.6; cf. Rep. 2.54; 2Verr. 5.143.
95 Dom. 33.
96 We follow Karl Büchner's interpretation of ius autem legis aequale; aequale “muss heissen, dass das ius in Hinsicht auf das Gesetz in dessen spezifischer Eigenschaft, für alle gleichmässig zu gelten, die Gleichheit des Gesetzes ist.” Aequale has this meaning rarely, but it does so at Leg. 1.49, too: societas hominum et aequalitas et iustitia per se est expetenda. See Büchner, M. Tullius Cicero, De re publica: Kommentar (Heidelberg: Universitätsverlag Winter, 1984), 136f.
97 Cic. Off. 2.42: Ius enim semper est quaesitum aequabile; neque enim aliter esset ius.
98 See Fantham, “Aequabilitas”; A. Dyck, “On the Interpretation of Cicero, De Republica,” Classical Quarterly 48, no. 2 (1998): 564–8.
99 Straumann, Crisis and Constitutionalism, 54–62, 286–95. See Cic. Off. 1.26; 2.24, where Caesar by overthrowing iura and suppressing leges also suppresses by the same token libertas and makes the state unfree.
100 Leg. Agr. 2.102.
101 Off. 2.41.
102 Caec. 70.
103 Leviathan, 2.24 (p. 388).
104 See, for this view of Hobbes as a champion of legality and a kind of legally constituted civil liberty, D. Dyzenhaus, The Long Arc of Legality, 115–20.
105 Leg. 3.39.
106 Rep. 2.39f.
107 Leg. 3.10; 3.39. See V. Arena, “Popular Sovereignty in the Late Roman Republic,” in Q. Skinner, R. Bourke (eds.), Popular Sovereignty in Historical Perspective (Cambridge: Cambridge University Press, 2016), 73–3, for the view that this represented a “quasi-alienation” of the people's sovereignty.
108 Rep. 2.56. Indeed, the one instance where one can find an unmistakable association of participation and liberty is at Rep. 1.47, but here Scipio presents the argument for democracy; liberty as participation is once again seen as a specifically democratic idea, and the examples are Athens and Rhodes. Romans, by contrast, are considered free only by name (verbo). Many thanks to Malcolm Schofield for discussing this passage.
109 See Lintott, Constitution of the Roman Republic, ch. 7. The resulting picture of the res publica as a res populi, and of the control exercised by the people over their property, is one in which that control looks rather Schumpeterian: the people in assembly can vote people into office, and the magistrates have to step down after a year; the people can and do legislate, but it is only the magistrate who has the initiative and can put forward proposals. For the debate on the extent to which the Roman republic had democratic features, see Millar; Hölkeskamp; and now Yakobson.
110 Livy 2.1.1: imperiaque legum potentiora quam hominum.
111 Livy 2.1.7: libertatis autem originem inde … quia annuum imperium consulare factum est.
112 Note that according to Scipio's definition in Rep. 1.39, a proper res publica requires agreement about the law, iuris consensus. This is not, however, a contractarian view, where agreement (consensus) creates what is normatively binding (ius); rather, it is the rationalist view that rational insight into what the natural law requires creates the agreement. See Schofield, Cicero. Also, note that what is required is a iuris consensus, not a consensus about happiness or the proper conception of the good (i.e. not beatitudinis consensus, nor summi boni consensus).
113 See Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1889), 181, 176; Gertrude Himmelfarb, “The Politics of Democracy: The English Reform Act of 1867,” Journal of British Studies 6, no. 1 (1966): 97–138; and Greg Conti, “Introduction,” to Dicey, Writings on Democracy and the Referendum (Cambridge: Cambridge University Press, forthcoming).
114 On the importance of this distinction, see Daniel Lee, The Right of Sovereignty: Jean Bodin on the Sovereign State and the Law of Nations (Oxford: Oxford University Press, 2021), chap. 3.
115 For the idea of conceptual overlap and conceptual change, see Straumann, “The Energy of Concepts: The Role of Concepts in Long-Term Intellectual History and Social Reality,” Journal of the Philosophy of History 14 (2020): 147–82.
116 Niccolò Macchiavelli, Discorsi sopra la prima deca de Tito Livio, ed. Franceso Bausi (Rome: Salerno, 2001), 2 vols.; 1.16 (pp. 102–3); English trans. (modified) in Discourses on the First Ten Books of Titus Livius, vol 2. of The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli, trans. Christian E. Detmold (Boston: Osgood and Co., 1882), 138.
117 J. G. A. Pocock discussed the political tradition that recognized “liberty defined by law,” but argued that it was “of the empire rather than the republic,” and thus not central to Machiavelli (it was a language “he had altogether ignored”): see “Virtues, Rights, and Manners: A Model for Historians of Political Thought” (1981), in Virtue, Commerce, and History (Cambridge: Cambridge University Press, 1985), 43, 46. In an early work on Machiavelli, by contrast, Skinner did connect Machiavelli's theory of liberty with law: see Machiavelli (Oxford: Oxford University Press, 1983), 9–10; disc. in Carl K.Y. Shaw, “Quentin Skinner on the Proper Meaning of Republican Liberty,” Politics 23, no. 1 (2003): 46–56 (49).
118 Discorsi, 1.22 (p. 127); Discourses, 150 (trans. modified).
119 Discorsi, 1.24 (p. 133); Discourses, 153 (trans. modified).
120 See John Najemy, A History of Florence, 1200-1575 (Oxford: Blackwell, 2008).
121 See Gabriele Pedullà, “Humanist Republicanism: A New Paradigm,” History of Political Thought 41, no. 1 (2020): 43–95; and Peter Stacey, “Liberty and the Rule of Law: Freedom in Renaissance Republicanism,” in A Cultural History of Democracy in the Renaissance, ed. Virginia Cox and Joanne Paul (London: Bloomsbury, 2021), 41–61.
122 “A Defense of the Roman Origins of Florence,” in Images of Quattrocento Florence: Selected Writings in Literature, History, and Art, ed. and trans. Stefano Ugo Baldassarri and Arielle Saiber (New Haven: Yale University Press, 2000), 7.
123 Clu. 146: legum denique idcirco omnes servi sumus, ut liberi esse possimus. Trans. ours. It is possible that Salutati knew the Pro Cluentio, a copy of which had been given to Petrarch in 1355 by Boccaccio: Silvia Rizzo, La tradizione manoscritta della Pro Cluentio di Cicerone, 26. But for an argument that Salutati did not know the Pro Cluentio, see Peter L. Schmidt, “Zur Rezeption von Ciceros politischer Rhetorik im frühen Humanismus,” in Renaissance-Rhetorik, ed. Heinrich F. Plett (De Gruyter, 1993), 23–42. It is certainly possible that Salutati knew the passage in question.
124 When dealing with Catiline's conspirators, Cicero (as consul) ordered them executed without appeal (thus violating the right of provocatio). He would subsequently be exiled for this action. See Straumann, Crisis and Constitutionalism, chs. 2–3 for the political and institutional history and ch. 4 for Cicero's political thought.
125 Discorsi, 1.16 (p. 105); Discourses, 139–40.
126 Discorsi, 1.16 (p. 102); Discourses, 138.
127 Shklar herself would probably not have agreed with this remark, as she refers to “the deeply illiberal prerevolutionary republican tradition of which John Pocock has reminded us so forcefully” in The Machiavellian Moment. See “The Liberalism of Fear,” in Liberalism and the Moral Life, ed. Nancy Rosenblum (Cambridge: Harvard University Press, 1989), 22 (and for the definition, 21).
128 Discorsi, 1.2 (pp. 22–6), largely paraphrasing Polybius book 6.
129 Discorsi, 1.5 (p. 37), also for the examples of aristocratic states that have preserved political liberty. Cf. John McCormick, Machiavellian Democracy (Cambridge: Cambridge University Press, 2011).
130 Discorsi, 1.18 (p. 113); Discourses, 114 (trans. modified). For Aristotle, see above, and Pol. 2.1269a; see also JJR, SC, 4.1.
131 Leviathan, 2.21 (p. 332).
132 See Nikola Regent, “Quentin Skinner, Contextual Method, and Machiavelli's Understanding of Liberty,” History of the Human Sciences (2022), 1–27: “Regarding this kind of liberty Machiavelli seems to be agreeing with Hobbes … ” (7). For the crucial differences in underlying assumptions, apart from the narrower issue of liberty, see Straumann, Crisis and Constitutionalism, ch. 7. The strongest claim for a radical distinction between republican and liberal theories of liberty can be found in Skinner, Liberty Before Liberalism.
133 Noel Malcolm, “Thomas Hobbes: Liberal Illiberal,” 131, 132. Emphasis Malcolm's.
134 Ibid, 130.
135 David Dyzenhaus, “Hobbes on the Authority of Law,” 198 (n.); id., The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge University Press, 2022), ch. 2.
136 Hobbes, Leviathan, ch. 20; see Susanne Sreedhar, “Interpreting Hobbes on Civil Liberties and Rights of Resistance,” in Interpreting Hobbes's Political Philosophy, ed. by S. A. Lloyd (Cambridge, UK: Cambridge University Press, 2019): 141–55.
137 See Dyzenhaus, Long Arc of Legality, 115–20, esp. 120: “the bonds of the law create civil liberty … . Hobbes's concern was thus more the quality than the quantity of civil liberty. That a universal quality is secured … is important to understanding why for Hobbes sovereign rule is not arbitrary in the way contemporary ‘republican’ philosophers today allege.” For liberty as a condition of obligation, see Hobbes, Leviathan, ch. 20, where slaves are not given liberty and thus “have no obligation at all,” whereas the subject “hath corporal liberty allowed him, and upon promise not to run away, nor do violence to his master, is trusted by him.”
138 Vickie B. Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism in England (Cambridge: Cambridge University Press, 2006), 46.
139 Discorsi, 1.16 (p. 106); Discourses, 140 (trans. modified); emphasis added.
140 See Lee, Right of Sovereignty.
141 See Brian Tierney, “'The Prince Is Not Bound By the Laws’: Accursius and the Origins of the Modern State,” Comparative Studies in Society and History 5 (1963): 378–40; Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993).
142 See Rousseau, Discours sur l’origine et les fondements de l’inégalité, in vol. 3 of Œuvres complètes, ed. Bernard Gagnebin and Marcel Raymond (Paris: Gallimard, 1964); henceforth, JJR; 112. On the Dedication, see Helena Rosenblatt, Rousseau and Geneva: From the First Discourse to The Social Contract, 1749-1762 (Cambridge: Cambridge University Press, 2007), chp. 2.
143 JJR, 112; emphasis added. Cf. also Montesquieu, Spirit of Laws, 11.3: “La liberté est le droit de faire tout ce que les loix permettent ; et si un citoyen pouvoit faire ce qu'elles défendent, il n'auroit plus de liberté, parce que les autres auroient tout de même ce pouvoir” (emphasis added).
144 See e.g. Pettit, “Two Republican Traditions,” in Republican Democracy: Liberty, Law and Politics, eds. Andreas Niederberger and Philipp Schink, (Edinburgh: Edinburgh University Press, 2013), and by the same author, “Rousseau's Dilemma,” in Engaging with Rousseau: Reaction and Interpretation from the Eighteenth Century to the Present, ed. Avi Lifshitz (Cambridge: Cambridge University Press, 2016). See also de Dijn, “Rousseau and Republicanism.”
145 This is the more common argument among Rousseau scholars: see e.g. Joshua Cohen, Rousseau: A Free Community of Equals (Oxford: Oxford University Press, 2010); Frederick Neuhouser, “Jean-Jacques Rousseau and the Origins of Autonomy,” Inquiry 54, no. 5 (2011): 478–93. For an interpretation more in line with the one proposed here, see Robert Wokler, “Rousseau's Two Concepts of Liberty,” (1987), in Rousseau, the Age of Enlightenment, and Their Legacies, ed. Bryan Garsten (Princeton: Princeton University Press, 2012), chp. 10.
146 Du contrat social, 2.3 (on the will of all vs the general will), in JJR, 3:371–72; and 2.7, in JJR, 3:385 (for quote; see also 4.2, in JJR, 3:440).
147 Du contrat social, 1.6; JJR, 360–1; see also 2.4, in JJR 3:374.
148 Du contrat social, 2.4; JJR, 374.
149 Ernst Cassirer, The Question of Jean-Jacques Rousseau, trans. Peter Gay (New York: Columbia University Press, 1954).
150 Du contrat social, 2.4; JJR, 3:374.
151 Du contrat social, 4.1; JJR, 3:437.
152 On Rousseau's gendered norms of citizenship, see notably Joel Schwartz, The Sexual Politics of Jean-Jacques Rousseau (Chicago: University of Chicago Press, 1985); Penny A. Weiss, Gendered Community: Rousseau, Sex, and Politics (New York: NYU Press, 1995); and Catherine Larrère, “Jean-Jacques Rousseau on Women and Citizenship,” History of European Ideas 37, 2 (2011): 218–22.
153 “Dédicace,” Discours sur l’inégalité, in JJR, 3:119–20.
154 For an earlier, narrower attempt at showing this, see Straumann, “Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius's Early Works on Natural Law,” Law and History Review 27, no.1 (2009): 55–85.
155 On the need to question the division between liberal and republican lines thought, see notably Sullivan, Machiavelli, Hobbes; and Richard Bourke, “Rights, Property and Politics: Hume to Hegel,” in The Cambridge History of Rights, vol. 4, ed. Dan Edelstein and Jennifer Pitts (Cambridge: Cambridge University Press, forthcoming). Bourke is responding to Pocock, “Virtues, Rights, and Manners.”
156 In The Lost History of Liberalism: From Ancient Rome to the Twenty-First Century (Princeton: Princeton University Press, 2018), Helena Rosenblatt briefly considers Cicero and Seneca, though focuses on their ideas about liberality (see 9–11). For notable accounts that focus on the post-Renaissance, see Friedrich Hayek, The Road to Serfdom (1944), vol. 2 of The Collected Works of F. A. Hayek (Chicago: University of Chicago, 2007); Pierre Manent, An Intellectual History of Liberalism (1987), trans. Rebecca Balinski (Princeton: Princeton University Press, 1995); Annelien de Dijn, French Political Thought from Montesquieu to Tocqueville (Cambridge: Cambridge University Press, 2008); and Alan Ryan, The Making of Modern Liberalism (Princeton: Princeton University Press, 2012).
157 The same arguably holds true for democracy: see e.g. Stephen Sawyer, “The Forgotten Democratic Tradition of Revolutionary France,” Modern Intellectual History 18, no. 3 (2021): 629–57.